IN THE SUPREME COURT OF IOWA

No. 140774
Filed April 10, 2015
CLARKE COUNTY RESERVOIR COMMISSION,
Appellee,
vs.
LINDA SUE ABBOTT, et al.,
Defendants,
EDWIN D. & DELORIS A. ROBINS REVOCABLE TRUST (SHEILA A.
HARNED, LANNY ROBINS, DOUGLAS E. ROBINS) AND KYLE ROBINS,
Appellants.

Appeal

from

the

Iowa

District

Court

for

Clarke

County,

Sherman W. Phipps, Judge.

Landowners appeal district courts declaratory judgment under

Iowa Code section 6A.24(2). REVERSED AND REMANDED.

David L. Brown of Hansen, McClintock & Riley, Des Moines, for

appellants.

Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, for appellee.

2
WATERMAN, Justice.
This appeal presents two interrelated questions of first impression.
The first question is whether a joint public-private commission organized
under Iowa Code chapter 28E (2013) may exercise eminent domain
powers.

The second question is whether a declaratory judgment of

public use under Iowa Code section 6A.24(2) obtained by such an entity
may be affirmed on mootness grounds after the private members
withdrew from the commission during the appeal.
Clarke

County

Reservoir

Commission

(the

In this case, the

Commission)

filed

declaratory judgment action seeking a ruling that its proposed project to

build a public reservoir for drinking water was a public use that would
allow the Commission to condemn private land.
property

was

to

be

condemned

for

the

Landowners whose

project

challenged

the

Commissions authority to proceed because the Commission included

private members that lacked eminent domain authority.

The district

court rejected the landowners challenge and entered judgment declaring

the project is for a public use.

The landowners appealed.

The

Commission argues the appeal was rendered moot when the private
members withdrew.
The sovereign power to take private property from citizens without
their consent is limited by our State and Federal Constitutions and
legislative enactments. Property owners are entitled to strict compliance
with legal requirements when a government entity wields the power of
eminent domain. These legal requirements help protect against abuse of
the eminent domain power. We strictly construe statutes delegating the
power of eminent domain and note the absence of a clear legislative
authorization for a joint public-private entity to condemn private
property.

3
For the reasons elaborated below, we hold a 28E commission with
members lacking the power of eminent domain cannot itself exercise the
power of eminent domain or serve as an acquiring agency seeking a
declaratory judgment under section 6A.24(2).

We determine the

postjudgment withdrawal of the private members did not render this

appeal moot because the district court erred by entering judgment in
favor of an improper acquiring agency. We therefore reverse the district
courts declaratory judgment that the Commission, as then constituted,
was a proper acquiring agency and remand the case for further
proceedings.
I. Background Facts and Proceedings.
On March 7, 2003, six agencies located in Clarke County filed a
28E agreement 1 with the Iowa Secretary of State, creating the Clarke
County Reservoir Commission. The initial members of the Commission
were the Osceola Waterworks Board of Trustees; the Southern Iowa
Rural Water Association; Clarke County; and the cities of Osceola,
Murray, and Woodburn. Section II(a) of the 28E agreement describes the
purpose of the Commission:
To make decisions in the locating, planning, and design of a
new reservoir and regional recreation facility in Clarke
County, Iowa. Multiple sites . . . will be investigated and
pursued for feasibility and funding as multi-purpose
reservoirs for flood control, erosion control, recreation and
water supply purposes as agreed by the Commission.

1A

28E agreement, also called a Joint Exercise of Governmental Powers

pursuant to Iowa Code chapter 28E, allows state and local governments in Iowa to
make efficient use of their powers by enabling them to provide joint services and
facilities with other agencies and to cooperate in other ways of mutual advantage. Iowa
Code 28E.1.

4
The agreement also gave the Commission the power and responsibility to
acquire funds for the new reservoir, pay any necessary expenses, and
manage the new reservoir after its creation.
The

Commission

requested

report

from

H.R.

Green,

professional engineering and technical consulting company, to determine

the future water needs for the Clarke County area from 2008 to 2058.
Mark Duben, a professional engineer, certified the results of that report
to the Commission on March 6, 2008. The study showed that the area
would require three million gallons per day (mgd) by 2037 and 4.4 mgd
by 2058. At the time, the Iowa Department of Natural Resources rated
the areas current water source, West Lake, for a capacity of 1.37 mgd.
The study evaluated the feasibility of four alternative construction
projects to meet the projected water shortfall: (1) a new reservoir, (2) a
pipeline to buy water from the Des Moines Waterworks, (3) a pipeline to
buy water from the Rathbun Regional Water Association, and (4) a
groundwater well field.
In August, the Commission amended its 28E agreement to add
three additional organizations to its membership: the Clarke County
Conservation Board, the Clarke County Soil and Water Conservation
District, and the Clarke County Development Corporation. The Clarke
County Development Corporation is a section 501(c)(6) corporation, a
private entity that lacks the power of eminent domain. The amendment
also modified the language of section V(e), giving the Commission the
power
to acquire by purchase, gift, lease, use of eminent domain
powers or otherwise real property and easements to be held
in the name of the Commission, to hold and use for the
purposes of the Commission and to dispose of property in
the same manner as a city when no longer needed for the
Commission. The Commission may acquire real property in

5
its own name or the Commission may request a Sponsor
having the power of eminent domain to bring an eminent
domain action to acquire real property on behalf of or for the
use of the Commission, which the Sponsor shall do,
provided, however, the Commission shall fully reimburse the
Sponsor for all costs of acquisition including not only
damages paid to the property owner but also all other
administrative and related costs incurred by the Sponsor to
complete acquisition through use of eminent domain.
The amendment further created section XI(a) of the agreement, which
states:
The Commission shall acquire all necessary real, personal,
and intangible property necessary for the public purposes
set forth in this Intergovernmental Agreement, which shall
be held in the name of the Clarke County Reservoir
Commission.
Such property may be acquired by sale,
exchange, or by the exercise of the power of eminent domain
as provided above.
H.R. Green updated its study in 2010 and again in 2014 to
address regulatory changes that downgraded West Lakes rated capacity
to .9 mgd and adjust for expected development that had not occurred.
The updated studies concluded that Clarke Countys water needs would
remain approximately 3 mgd by 2037.

The 2014 study called for

development of new sources of water with a capacity of 2.2 mgd to meet

needs and comply with state and federal regulations. After considering
the feasibility of all the alternatives H.R. Green presented, the
Commission decided to move ahead with plans to build a new reservoir.
The Commission held a public hearing regarding its intent to go
forward with the reservoir by condemning land needed for the project.
On

December

6,

2012,

the

Commission

adopted

Resolution

Authorizing Public Improvement Which May Require Acquisition of

Agricultural Land, Resolution No. 2012-3.

On March 5, 2013, the

Commission filed a declaratory judgment action in the district court for

Clarke County, seeking a declaration of public use, public purpose, or

6
public improvement under Iowa Code section 6A.24(2). The Commission
served notice on the owners of fifty-four tracts of land required to
complete the project.
On March 27, defendant, Edwin D. & Deloris A. Robins Revocable
Trust (Robins Trust), owner of one of the parcels of land to be
condemned, filed an answer to the petition. 2 The Robins Trust filed an
amended and substituted answer on May 22.

The amended answer

alleged eleven affirmative defenses, including that the [p]laintiff does not
have the legal authority to initiate this condemnation proceeding under
Iowa Code Section 6A.4.

The amended answer also alleged the

[p]laintiffs real or intended purpose of the proposed lake is primarily for

recreational use. The plaintiffs allegation of the proposed lakes purpose
as a drinking water source is a false artifice. On January 10, 2014, the
Robins Trust filed a motion for summary judgment on grounds that the
Commission lacks the power of eminent domain because one of its
members, the Clarke County Development Corporation, is a private
entity lacking that power. The Commission filed a resistance, responding
that the 28E agreement contemplated that the Commission would
exercise eminent domain power directly. On March 3, 2014, the district
court denied the motion for summary judgment and ruled that although
the Clarke County Development Corporation lacked the power of eminent
domain, the 28E agreement granted the Commission itself the power of
eminent domain.
The case proceeded to a two-day bench trial commencing March 10
on the issue of whether the reservoir was a public use. The Commission
2Nineteen

landowners filed answers to the initial petition. Only the Robins Trust
and Kyle Robins are parties to this appeal. We refer to the appellants collectively as the
Robins Trust.

7
called four witnesses. Duben testified about the report he prepared with
H.R. Green verifying the water needs of the Clarke County area.

He

testified that the site was selected to provide the greatest capacity while
keeping adequate distance from a confined animal feeding operation and
a prairie remnant located in the watershed.

He also testified that the

Commission modified the Clarke County Water Supply Plan on

September 12, 2013, to remove all plans for recreational activities.
Without recreation areas, the 2013 water supply plan cost six million
dollars less than the 2011 plan and required less land to complete. A
financing expert, Scott Stevenson, testified that funding the project was
feasible.

Dan Lovett, an environmental engineer, testified that the

Commission considered and rejected alternatives to the reservoir because

of their greater environmental impact and expense. Finally, David Beck,
project

manager

for

the

Commission,

testified

regarding

the

Commissions attempts to notify all landowners and plans to pay for the
reservoir. The landowners called no witnesses. On April 8, the district
court ruled for the Commission, concluding the project qualified as a
public use within the meaning of Iowa Code section 6A.22(2).
The Robins Trust filed its notice of appeal on May 6 and its
appellate proof brief on July 24. The sole issue raised on appeal was
that the district court erred by ruling the Commission with private
members had eminent domain powers. On August 22, the Commission
filed a motion to supplement the record and dismiss the appeal as moot.
Attached to the motion is the Amended and Restated Intergovernmental
Agreement filed with the Secretary of State on August 18 showing that
the Clarke County Conservation Board, the Clarke County Development
Corporation, and the Clarke County Soil and Water Conservation District

8
had withdrawn as members of the Commission. 3

Based on this

reorganization, all current members of the Commission are public

entities with the power of eminent domain. The Robins Trust resisted
the motion to dismiss on legal grounds, but did not dispute the fact that
the Commission no longer included any private members. We retained
the appeal and ordered the motion to dismiss submitted with the appeal.
II. Standard of Review.
The parties agree that our standard of review is for correction of
errors at law.

Iowa R. App. P. 6.907.

We review the district courts

interpretation of a statute for correction of errors at law. Star Equip.,

Ltd. v. State, 843 N.W.2d 446, 451 (Iowa 2014). We review constitutional
questions de novo.

Id.

Our review of an appeal from a declaratory

judgment action is determined by how the case was tried in district

City of Riverdale v. Diercks, 806 N.W.2d 643, 651 (Iowa 2011).

court.

The Commission filed this declaratory judgment as an action at law. The

district court ruled on a motion for summary judgment filed by the
Robins Trust and ruled on objections during the bench trialindications
the proceeding was treated as a law action in district court. Accordingly,
our review of the declaratory judgment is for correction of errors at law.
See id.
III. Analysis.
We are asked to decide whether the district courts declaratory
judgment on public use must be reversed because the Commission was
not a proper party under Iowa Code section 6A.24.

The Robins Trust

3Normally on appeal we cannot consider matters outside the trial court record.
There is an exception to this general rule for mootness issues. Matters that are
technically outside the record may be submitted in order to establish or counter a claim
of mootness. In re L.H., 480 N.W.2d 43, 45 (Iowa 1992)).

9
argues that allowing a private entity to exercise the public power of
eminent domain jointly with public entities violates chapter 28E of the
Iowa Code, the Federal and State Constitutions, and our caselaw and
that the remedy is to vacate the declaratory judgment. The Commission
argues that the issue is moot because all members of the Commission
lacking the power of eminent domain withdrew from the Commission
during the pendency of this appeal.

Alternatively, the Commission

argues it could exercise the power of eminent domain even if its

membership at that time included private entities lacking that power. To
place these issues in context, we begin with an overview of the power of
eminent

domain.

Next,

we

address

whether

the

Commissions

postjudgment reorganization rendered the issue moot.

Because we

conclude the issue is not moot, we then turn to the question of whether a
28E entity with both public and private members can validly exercise the
power of eminent domain. We answer that question no.
A. Eminent Domain.

The power to take private property for

public use is an attribute of sovereignty which may be delegated only by

express authorization of the legislature. Hardy v. Grant Twp. Trs., 357
N.W.2d 623, 625 (Iowa 1984).

Statutes that delegate the power of

eminent domain should be strictly construed and restricted to their

expression and intention. Hawkeye Land Co. v. Iowa Utils. Bd., 847
N.W.2d 199, 208 (Iowa 2014) (quoting Hardy, 357 N.W.2d at 626).
The Iowa Constitution limits the power of eminent domain by
providing, Private property shall not be taken for public use without just
compensation first being made . . . . Iowa Const. art. I, 18. Similarly,
the Fifth Amendment to the Federal Constitution provides, private
property [shall not] be taken for public use without just compensation.
U.S. Const. amend. V. The twin threshold requirements of public use

10
and just compensation are designed to bar Government from forcing
some people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole . . . . Perkins v. Bd. of
Supervisors, 636 N.W.2d 58, 6970 (Iowa 2001) (quoting Armstrong v.
United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569, 4 L. Ed. 2d 1554,
1561 (1960)). Justice OConnor underscored the constitutional necessity
that any taking be for a public use with just compensation:
These two limitations serve to protect the security of
Property, which Alexander Hamilton described to the
Philadelphia Convention as one of the great obj[ects] of
Gov[ernment].
Together they ensure stable property
ownership by providing safeguards against excessive,
unpredictable, or unfair use of the governments eminent
domain powerparticularly against those owners who, for
whatever reasons, may be unable to protect themselves in
the political process against the majoritys will.
Kelo v. City of New London, 545 U.S. 469, 496, 125 S. Ct. 2655, 2672,
162 L. Ed. 2d 439, 462 (2005) (OConnor, J., dissenting) (citation and
internal quotation marks omitted).

The public-use requirement is to

prevent abuse of the power for the benefit of private parties. See id. at
50405, 125 S. Ct. at 267677, 162 L. Ed. 2d at 467.
Accordingly, we have long recognized the importance of strict
compliance with statutory requirements for the exercise of eminent
domain:
Thus, where the right of eminent domain is invoked, the
provisions of the law granting the right must be complied
with. In some instances the statute or franchise authorizing
the construction of the work prescribes a special procedure
to facilitate acquiring property by condemnation; where such
is not the case, condemnors are bound, of course, to proceed
according to the provisions of the general laws. In any case,
the extent to which the power of eminent domain may be
exercised is limited to the express terms or clear implication
of the statute in which the grant is contained. Where,
therefore, the state, a municipality, or other agent in charge
of a public use, seeks to acquire, against the consent of the
owner, private property for public use, the provisions of the

11
authorizing law must be strictly complied with, and this
must appear on the face of the proceedings for taking the
land. In other words, the statutory procedure must be
followed.
Bourjaily v. Johnson County, 167 N.W.2d 630, 63334 (Iowa 1969)
(internal quotation marks omitted).

See also Hawkeye Land Co., 847

N.W.2d at 21819 (narrowly construing definition of public utility

entitled to use eminent domain provision of railroad-crossing statute); In
re Condemnation of Land for Valley View Park Aquatic/Roadway, 687
N.W.2d 103, 105 (Iowa 2004) (citing Bourjaily and strictly construing
Iowa Code section 6B.57 to hold service on cotrustee for named and
unnamed trusts that jointly owned land did not constitute notice to
trusts unnamed in petition). We see no reason to retreat today from our
long-standing approach mandating strict compliance with statutory
requirements in eminent domain proceedings.
B. The Declaratory Judgment Issue.

Iowa Code chapter 6A,

entitled Eminent Domain Law, codifies requirements for condemning

private property for public use. Section 6A.24 provides for judicial review
of eminent domain authority.

See Iowa Code 6A.24.

This provision

permits an acquiring agency to petition the court for a ruling that the
proposed taking of private property is for a public use, public purpose,
or public improvement:
An acquiring agency that proposes to acquire property
by eminent domain may file a petition in district court
seeking a determination and declaration that its finding of
public use, public purpose, or public improvement necessary
to support the taking meets the definition of those terms.
Id. 6A.24(2) (emphasis added). Chapter 6B, entitled Procedure Under
Eminent Domain, defines acquiring agency as the state of Iowa and
any person or entity conferred the right by statute to condemn private

12
property or to otherwise exercise the power of eminent domain.

Id.

6B.1(2).
The Commission filed its petition under section 6A.24(2) and
sought a judicial declaration that the proposed reservoir met the publicuse requirement for eminent domain. The Robins Trust, by motion for
summary judgment, raised a threshold challenge in district court,
arguing the Commission was not a proper acquiring agency because it
included private members that lacked eminent domain authority.

The

district court denied that motion and ruled the Commission was a proper
party.

The landowners also litigated and lost the issue whether the

reservoir was for a public use.

We next address the Commissions

argument that this appeal is moot.

C. Mootness. At the time the district court entered its declaratory
judgment, the Commission still included private members. As noted, the
private members withdrew after the Robins Trust filed its notice of
appeal.

The Commission argues the declaratory judgment is valid

because the postjudgment reorganization rendered moot the challenge to

its authority to exercise eminent domain powers.

The Robins Trust

argues the Commission was not a proper party plaintiff or acquiring

agency under section 6A.24(2) when it filed and obtained the declaratory
judgment, which constitutes a fatal procedural flaw that taints the
proceedings and requires the judgment to be vacated. The Robins Trust
contends the Commission cannot cure this flaw belatedly by the
postjudgment withdrawal of the private members.

Paradoxically, we

cannot determine whether the appeal is moot without deciding whether

the alleged defects in the status of the Commission as the acquiring
agency are fatal to the judgment or rather can be cured on appeal.

13
An appeal is moot if it no longer presents a justiciable
controversy because [the contested issue] has become
academic or nonexistent. The test is whether the courts
opinion would be of force or effect in the underlying
controversy. As a general rule, we will dismiss an appeal
when judgment, if rendered, will have no practical legal effect
upon the existing controversy.
In re Guardianship of Kennedy, 845 N.W.2d 707, 71011 (Iowa 2014)
(quoting In re M.T., 625 N.W.2d 702, 704 (Iowa 2001)). Mootness is not
a question of power but rather one of restraint.

Rush v. Ray, 332

N.W.2d 325, 326 (Iowa 1983).

In Lewis Investments, Inc. v. City of Iowa City, we rejected a
mootness challenge raised on appeal in a condemnation action.
N.W.2d 180, 18384 (Iowa 2005).

703

In that case, the city sought to

condemn a residential building as a public nuisance. Id at 182. The

owner filed an action seeking a temporary and permanent injunction,
alleging lack of due process because it was denied an evidentiary hearing
before an independent body before the city declared the building a public
nuisance. Id. at 183. The district court denied the temporary injunction,
and the city proceeded with the condemnation. Id. We permitted the
owner to file an interlocutory appeal of the injunction ruling. Id. at 183.
Meanwhile, the condemnation hearing was held, and the compensation
commission awarded $259,000 to the owner for the property. Id. The
city deposited that amount with the sheriff, secured the property, and
cleaned it up in anticipation of sale. Id. Based on those events, the city
moved to dismiss the appeal from the injunction ruling as moot. Id. We
rejected the mootness claim, noting the property had not yet been sold to
a third party and that the court could still restore the parties to their
former positions.

Id. at 184.

We distinguished caselaw in which a

challenged roadway had been completed before submission of the appeal.

Id. at 18384 (distinguishing Welton v. Iowa State Highway Commn, 227

14
N.W. 332, 333 (Iowa 1929)). Similarly, the proposed reservoir challenged
by the landowners in this case has not been built, nor has the property
been acquired by the Commission through eminent domain. It is not too
late to decide the issue presented in this appeal.
All of the current members of the Commission have the power of
eminent domain by statute. 4

But, the Commission included private

members at the time it filed its petition seeking a declaration of public

use under Iowa Code section 6A.24, at the time the district court ruled
on summary judgment, at the time the case was tried to the court, and
at the time the district court entered its declaratory judgment.

The

Robins Trust argues the Commission was improperly constituted at the

critical phases of these proceedings and that resulting taint cannot be
cured retroactively by the postjudgment reorganization.
Under Iowa Code section 6A.24(2), a declaratory action may only
be filed by an acquiring agency. The fighting issue below is whether the
Commission had eminent domain authority while it included private
members. Can we avoid deciding that issue by holding the postjudgment
withdrawal of the private entities cured the alleged defect in the
proceedings?
The Commission has cited no authority, and we found none,
holding that an appeal of a ruling in favor of an improper party
exercising eminent domain powers can be rendered moot by substituting
a proper party during the appeal. We are unable to conclude that the
issue appealed by the Robins Trustwhether the Commission as
4Clarke

Countys power of eminent domain is provided by Iowa Code section

6A.4(1). The cities power is provided by section 6A.4(6). The power of the waterworks
board is found in section 388.4(2). The Rural Water Associations eminent domain
power is provided by section 357A.11(5).

15
constituted in district court had the power of eminent domainis now a
merely academic issue, the resolution of which would have no effect on
the underlying dispute. See In re Trust No. T-1 of Trimble, 826 N.W.2d
474, 482 (Iowa 2013) (rejecting mootness challenge in appeal from failure
to provide accounting, even though belated accounting was completed
before submission of appeal, because resolution of right to accounting
affected claim for recovery of attorney fees).
We conclude that the appeal is not moot and proceed to address
the merits of the issue raised by the Robins Trust.
D. Whether a 28E Entity with Both Public and Private
Members Can Properly Bring an Action Under Iowa Code Section
6A.24(2). Generally, a 28E agreement
purports to authorize any political subdivision of the State of
Iowa and certain agencies of the state or federal government
to join together to perform certain public services and by
agreement create a separate legal or administrative entity to
render that service.
Goreham v. Des Moines Metro. Area Solid Waste Agency, 179 N.W.2d 449,
453 (Iowa 1970). The statute allows for the joint exercise of powers:
Any power or powers, privileges or authority exercised
or capable of exercise by a public agency of this state may be
exercised and enjoyed jointly with any other public agency of
this state having such power or powers, privilege or
authority, and jointly with any public agency of any other
state or of the United States to the extent that laws of such
other state or of the United States permit such joint exercise
or enjoyment. Any agency of the state government when
acting jointly with any public agency may exercise and enjoy
all of the powers, privileges and authority conferred by this
chapter upon a public agency.
Iowa Code 28E.3.

Further, private entities may enter into 28E

agreements with public entities for joint or cooperative action pursuant

to the agreement. Id. at 28E.4. Yet, chapter 28E does not expressly

16
address whether or how private entities may participate in a 28E
agreement exercising a public power that the private entity lacks.
The Robins Trust relies on two cases to support its contention that
the Commission with private members cannot exercise the power of
eminent domain. The first is Goreham, a case considering whether a 28E
agency composed entirely of public members could issue revenue bonds.
179 N.W.2d at 451. After examining the nature of 28E agreements and
noting the constitutional avoidance doctrine, we concluded that
this legislation must be interpreted with reference to the
power or powers which the contracting governmental units
already have. The pre-existing powers contain their own
guidelines. The legal creation of a new body corporate and
politic to jointly exercise and perform the powers and
responsibilities of the cooperating governmental unit would
not be unconstitutional so long as the new body politic is
doing only what its cooperating members already have the
power to do.
Id. at 455. In Barnes v. Department of Housing and Urban Development,
we answered a question certified to us by the United States District
Court for the Northern District of Iowa regarding the approval
requirements for regional housing authorities established under chapter
28E. 341 N.W.2d 766, 76667 (Iowa 1983). We noted that [c]hapter
28E . . . does not confer any additional powers on the cooperating
agencies; it merely provides for their joint exercise.

Id. at 767.

We

concluded the powers exercised by those municipalities in connection

with this project are not independent powers arising under chapter 28E
but a joint exercise of powers already vested in the members. Id. at 768.
Neither Goreham nor Barnes, however, involved eminent domain or a
28E entity with private members lacking the power to be exercised
jointly. The cases are instructive but not controlling.

17
We recently reiterated that only proper parties may exercise
eminent domain powers. In Hawkeye Land Co., the Iowa Utilities Board
(IUB) allowed an independent transmission company, ITC Midwest, to
utilize a statutory pay-and-go procedure to run electrical transmission
lines across a railroad over a property owners objectiona form of
eminent domain. 847 N.W.2d at 201. The owner of the railroad-crossing
easement

appealed,

determination.

Id.

and

the

district

court

affirmed

the

IUBs

The pay-and-go procedure in Iowa Code section

476.27 was only available to a public utility. Id. at 213. We held that
ITC Midwest did not meet the definition of a public utility and, therefore,
was the wrong party to use the eminent domain statute. Id. at 219. Our
conclusion led us to reverse the district court and remand for an order
vacating the IUBs decision.

Id.

Similarly, if we determine that the

Commission, as constituted in the district court, was not a proper party

to bring an action for a declaration of public use, we must reverse the
district courts declaratory judgment.
The Commission relies on Weiss v. City of Denison, in which a
school district and a city entered into a 28E agreement, and then the city
used its power of eminent domain to acquire land it transferred to the
school district.

491 N.W.2d 805, 80708 (Iowa 1992).

We concluded

that the city acted properly, condemning the land by its own power of
eminent domain and after having done so, was free to transfer the
property to the 28E entity. Id. Although Weiss remains good law, the
case is inapposite because here the Commission itself filed the action
seeking the declaration of public use, rather than having one of its public
members do so.
The Commission argues that the 28E agreement itself grants the
Commission the power of eminent domain.

We disagree.

Only the

18
legislature has the authority to delegate the power of eminent domain,
and the members of the Commission cannot grant or delegate their own
powers of eminent domain to the Commission but, rather, may only
exercise their individual powers jointly.

Barnes, 341 N.W.2d at 768;

Goreham, 179 N.W.2d at 455. The Commission further argues we should

liberally construe chapter 28E to achieve efficiency.

The legislatures

directive to construe chapter 28E liberally, however, is to promote

governmental efficiency:
The purpose of this chapter is to permit state and local
governments in Iowa to make efficient use of their powers by
enabling them to provide joint services and facilities with
other agencies and to cooperate in other ways of mutual
advantage. This chapter shall be liberally construed to that
end.
Iowa Code 28E.1.

The Commissions argument begs the question

whether private entities may exercise eminent domain powers jointly with
public entities in a 28E agreement. We will not infer such powers when
chapter 28E is silent on that point. See Hawkeye Land, 847 N.W.2d at
208, 219 (strictly construing statutes delegating the power of eminent
domain and holding only parties expressly authorized by the legislature
could utilize statutory procedure to acquire property over owners
objection). We may not read new powers into chapter 28E in the guise of
interpretation.

A contrary holding would effectively enable private

entities to exercise eminent domain powers through a 28E entity. Private

entities are not accountable to voters. Liberty requires accountability.
Dept of Transp. v. Assn of Am. R.R.s, ___ U.S., ___, 135 S. Ct. 1225,
1234, ___ L. Ed. 2d ___, ___ (2015) (Alito, J., concurring).

Delegating

governmental powers to quasi-public entities raises constitutional

questions.

Cf. id. at ___, 135 S. Ct. at 123940, ___ L. Ed. 2d at ___

(describing constitutional problems with delegating governmental powers

19
to private entity, but concluding Amtrak is a government entity for
purposes of developing standards for use of private railroad tracks). If
the legislature wanted to grant eminent domain powers to 28E entities
that include private members, it could have said so explicitly.

Policy

arguments in favor of granting eminent domain powers to joint privatepublic entities should be directed to the legislature.
No statute expressly allows a private entity to exercise the power of
eminent domain jointly through a 28E agreement. As we concluded in
Goreham and Barnes, a 28E agreement confers no new powers on the
entities involved, but only allows for the joint exercise of existing powers.
Barnes, 341 N.W.2d at 768; Goreham, 179 N.W.2d at 455. We hold that
a 28E entity with private members lacks the power of eminent domain.
Therefore, we conclude that the Commission did not have the power of
eminent domain at the time the district court entered its declaratory
judgment. Accordingly, it was not a proper acquiring agency under Iowa
Code section 6A.24(2).

The district court erred by allowing the

declaratory action to proceed to judgment with a plaintiff that was not a

proper acquiring agency.

This error requires us to reverse the

declaratory judgment. See Hawkeye Land, 847 N.W.2d at 219 (reversing

district court judgment and remanding for order vacating IUB decision
that erroneously allowed improper party to use pay-and-go railroadcrossing statute); In re Condemnation of Land for Valley View Park
Aquatic/Roadway, 687 N.W.2d at 106 (reversing judgment apportioning
condemnation award due to failure to name proper parties); cf. In re
Clement Trust, 679 N.W.2d 31, 3839 (Iowa 2004) (vacating final
judgment on claims for which plaintiff lacked standing); Wilson v. City of
Iowa City, 165 N.W.2d 813, 82425 (Iowa 1969) (modifying district

20
courts decree to declare void resolutions of city council invalidated by
votes of disqualified council member).
We reject the Commissions argument that the appeal should be
dismissed because the withdrawal of its private members removes any
question that the Commission, as reorganized now, has eminent domain
powers. Dismissal of the appeal would leave in place the district courts
existing declaratory judgment.
ongoing significance.

That declaratory judgment could have

The legislature knows how to excuse strict

compliance with statutory requirements when it chooses. For example,

Iowa Code section 6B.57 addresses an acquiring agencys good-faith
failure to comply with requirements to notify property owners:
If an acquiring agency makes a good faith effort to
serve, send, or provide the notices or documents required
under this chapter to the owner and any contract purchaser
of private property that is or may be the subject of
condemnation, or to any tenant known to be occupying such
property if notices or documents are required to be served,
sent, or provided to such a person, but fails to provide the
notice or documents to the owner and any contract
purchaser, or to any tenant known to be occupying the
property if applicable, such failure shall not constitute
grounds for invalidation of the condemnation proceeding if
the chief judge of the judicial district determines that such
failure can be corrected by delaying the condemnation
proceedings to allow compliance with the requirement or
such failure does not unreasonably prejudice the owner or
any contract purchaser.
Iowa Code 6B.57.

The legislature, however, has not enacted such a

provision to excuse defects in the composition of an acquiring agency.

We will not write such a provision into the statute in the guise of
interpretation.
Finally, the Commission argues that even if we hold it was an
improper party below, the district courts declaratory judgment of public
use will remain binding on the defendants who litigated and lost that

21
issue under the doctrine of issue preclusion or claim preclusion in future
proceedings. We disagree. Issue preclusion, a form of res judicata, is
based on a prior judgment. See Soults Farms, Inc. v. Schafer, 797 N.W.2d
92, 10304 (Iowa 2011). So, too, is claim preclusion. See Fennelly v. A-1
Mach. & Tool Co., 728 N.W.2d 181, 186 (Iowa 2007). A judgment, once
reversed or vacated, no longer has preclusive effect. Id. (noting reversal
of prior judgment defeated its preclusive effect). Nor does the law-of-thecase doctrine apply to preclude the parties from relitigating the publicuse issue or require them to do so on remand.

The law-of-the-case

doctrine applies to issues raised and decided on appeal. See Cawthorn v.

Catholic Health Initiatives, 806 N.W.2d 282, 286 (Iowa 2011); see also
Wolfe v. Graether, 389 N.W.2d 643, 651 (Iowa 1986) (contrasting
res judicata and law of the case). 5 The only issue raised by the Robins
Trust in this appeal was the composition of the Commission.
reversing the declaratory judgment on that ground alone.

We are

The Robins

Trust in this appeal did not otherwise challenge the district courts
public-use determination, and we do not reach that issue.
IV. Disposition.
For the foregoing reasons, we reverse the declaratory judgment of
the district court and remand the case for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.
All justices concur except Wiggins, J., who dissents.

5We

are not dealing here with the law-of-the-case implications of a district court
ruling that was not appealed. See, e.g., Nutting v. Zieser, 482 N.W.2d 424, 42526 (Iowa
1992) (noting how decision interpreting dram statute was saddled with the law of the
case implications of the district courts unappealed ruling). Rather, the Robins Trust
appealed the declaratory judgment, which we reverse on this appeal.

22
#140774, Clarke Cnty. Reservoir Commn v. Robins Revocable Trust
WIGGINS, Justice (dissenting).
I agree with the majoritys analysis of our eminent domain law, but
disagree with the courts resolution. The majoritys mootness analysis is
unnecessary because this case does not implicate the mootness doctrine.
The majority is correct in its conclusion that when the Clarke
County Reservoir Commission began its condemnation proceeding it did
not have the authority under Iowa law to do so because it was not a
properly constituted acquiring agency under Iowa Code section 6A.24(2)
(2013). I also agree with the majoritys analysis stating that we have
long recognized the importance of strict compliance with statutory
requirements for the exercise of eminent domain.

However, in its

analysis the majority chooses to talk about these principles in terms of

mootness, and then remands the case for further proceedings. I find this
analysis and outcome unnecessary under this record.

I would simply

reverse the decision without remanding the case back to the district
court on the ground the condemnation proceeding was flawed from the
beginning.
The Code provides: The procedure for the condemnation of private
property for works of internal improvement, and for other public projects,
uses, or purposes, unless and except as otherwise provided by law, shall
be in accordance with the provisions of this chapter.
6B.1A.

Iowa Code

Section 6B.2A provides the procedure for commencing a

condemnation proceeding:
An acquiring agency shall provide written notice of a public
hearing to each owner and any contract purchaser of record
of agricultural land that may be the subject of
condemnation. The authority under this chapter is not
conferred and condemnation proceedings shall not begin
unless a good faith effort is made to mail and publish the

23
notice as provided in this section on the owner and any
contract purchaser of record of the property subject to
condemnation.
Id. 6B.2A(1) (emphasis added).
When the Commission began the condemnation by mailing the
notice of public hearing it was not an acquiring agency.

Thus, an

acquiring agency did not send a notice of public hearing under section
6B.2A. Therefore, any action by the Commission after the flawed notice
is invalid.

Accordingly, the Commission cannot cure this defect by

reconstituting the commission, because a valid acquiring authority was

required to serve notice under section 6B.2A.
The majority does not reach this issue, presumably because the
parties did not argue this issue in this manner. On remand, I do not
think the acquiring agency can cure this defect.

The prudent way to

proceed would be to start the proceedings with a proper acquiring

agency, rather than attempting to fix the defect in the proceedings and
spend the time and resources pursuing another appeal. By starting over,
the acquiring agency lifts the uncertainty created by this defect and the
condemnation can occur sooner rather than later. Consequently, I think
we should find the condemnation proceeding is invalid and reverse the
judgment of the district court.